CJEU decided on removal of information by hosting services providers (Facebook)

The Court of Justice of the European Union (CJEU) issued a decision on application of injunction related to the removal of information kept on servers of hosting services providers.

The subject-matter of the dispute was the removal of posts infringing personal rights of Ms. Eva Glawischnig-Piesczek (an Austrian politician) which she sought on the company Facebook Ireland Limited. The dispute was held in Austria, reaching its way to Oberster Gerichtshof (i.e. Austrian Supreme Court) which decided to submit the case to CJEU, requesting a preliminary ruling since the matter is related to Directive on electronic commerce. The injunction of the Austrian court requested Facebook to removal specific post of the user by which rights of the plaintiff were infringed, including eventual copies or references, and ordered to remove also the “statements with identical wording and/or having equivalent content of which it (i.e. the hosting service provider) is not aware.”

The subject-matter of the interpretation was therefore the comparison of the right to the protection of personality with reasonable obligations that can be imposed on the hosting service provider, which in this case is Facebook Ireland Limited.

CJEU pointed out that courts of a Member State may not, first, grant an injunction against a host provider requiring it to monitor generally the information which it stores or, second, require that host provider actively to seek facts or circumstances underlying the illegal content. At the same time, it is not possible to apply the rules of the Directive to services of providers established outside the EU, even though CJEU urges the unification of the policy internationally.

Nevertheless, courts of a Member State may order removal of information which the hosting services provider stores and the content of which is equivalent to the content of information which was previously declared to be illegal, or to block access to that information. Courts of a Member State may also order removal or blocking of similar information or information identical in its sense to the information previously declared to be illegal. They nevertheless have to define them in the injunction in such a way so that the hosting provider is not required to independently assess the content of information which he should remove or block.

As regards the international impact, CJEU ruled that blocking of information internationally has to be done in accordance with the relevant international law.

It is thus one of the interesting decisions that brings a partially practical solution in the area of removing illegal content from servers of hosting service providers.

The decision is available here.